Pfeffer v. Kerr, 13495

• Court: Missouri Court of Appeals
• Writing for the Court: HOGAN
• Citation: Pfeffer v. Kerr, 693 S.W.2d 296 (Mo. App. 1985)
• Decision Date: 17 June 1985
• Docket Number: No. 13495,13495
• Parties: Betty PFEFFER, Individually and as Personal Representative of the Estate of Lowell Pfeffer, Lanny Pfeffer, Angie Pfeffer, Connie Palmer, Deanna Brewer, and Cathy Helfrink, Plaintiffs-Appellants, v. Michael KERR, Defendant-Respondent.

Page 296

693 S.W.2d 296

Betty PFEFFER, Individually and as Personal Representative of the Estate of Lowell Pfeffer, Lanny Pfeffer Angie Pfeffer, Connie Palmer, Deanna Brewer, and Cathy Helfrink Plaintiffs-Appellants, v. Michael KERR, Defendant-Respondent.

No. 13495.

Missouri Court of Appeals,

Southern District,

Division Three.

June 17, 1985.

Gary L. Lewis, David G. Edwards, Lilbourn, for plaintiffs-appellants.

Jeffrey S. Maguire, John L. Cook, Thomasson, Dickenson, Gilbert & Cook, Cape Girardeau, for defendant-respondent.

HOGAN, Judge.

This is a statutory wrongful death action brought by plaintiff Betty Pfeffer and her children. Plaintiffs are the widow and surviving children of Lowell Pfeffer, who died April 7, 1982. Alternatively, plaintiff Betty Pfeffer as personal representative of the Estate of Lowell Pfeffer, deceased, and the surviving children: 1) sought damages for personal injuries sustained by Lowell Pfeffer which did not result in his death and, 2) plaintiff Betty Pfeffer sought damages for personal injuries sustained by her in the casualty which created the other causes of action. The trial court directed a verdict for the defendant in the wrongful death action; the other causes were submitted to a jury, which found for the defendant. Plaintiffs now appeal. They have briefed and argued seven diffuse assignments of error in this court. The assignments of error directed to the trial of the non-death claim will be considered, but the primary question tendered is whether the trial court erred in directing a verdict for the defendant in the wrongful death action.

The casualty which gave rise to these actions was an automobile accident which occurred at or in the intersection of Highway 62 and Eight Ditch Road in New Madrid County on February 4, 1982. At the point of collision Highway 62 is an east-west road; it is intersected on both sides by a secondary road which runs north and south along the west side of a ditch, presumably a drainage ditch. To the east of the intersection there is a bridge over the ditch. Immediately before the accident happened--about 4:25 p.m.--Lowell Pfeffer was driving a pickup truck east on the south side of Highway 62; plaintiff Betty Pfeffer was a passenger in the truck. Defendant Michael Kerr was driving an automobile south on Eight Ditch Road, proceeding toward the intersection of Eight Ditch Road and Highway 62. At the northwest corner of the intersection, there is a stop sign for traffic southbound on Eight Ditch road.

For whatever reason, defendant Kerr failed to obey the stop sign and collided with the Pfeffer pickup. The pickup went out of control, struck the south rail of the bridge east of the intersection, rebounded, struck and broke the north rail and finally came to rest in the ditch over which the bridge runs. Plaintiff Betty Pfeffer was taken to Doctors Hospital in Poplar Bluff; Lowell Pfeffer was hospitalized at the VA Hospital in the same city. Lowell was discharged from the hospital on February 11, 1982, but he expired suddenly on April 6 and this litigation followed.

As bearing on the issue of causation, or proximate cause of Lowell Pfeffer's death, plaintiffs had the evidence of several lay witnesses. Ronald Albritton saw the Pfeffer pickup going in the ditch as he approached the bridge from the east. He stopped to see if he could be of assistance. He found Lowell "to [Albritton's] notion, ... unconscious." A few minutes later Lowell was "not totally conscious but he was semi-conscious, I would say, he was still dazed, in my opinion, didn't--wasn't coherent at all, ... he could help [himself] in no way."

Donald Gene Moore was an ambulance driver and attendant. He was also a licensed emergency medical technician. He and his ambulance arrived at the scene shortly after the accident occurred. Moore took Lowell's blood pressure, which he found to be 300 over 140. Normal blood pressure is 150 over 80 or 90. Moore helped Lowell to the bathroom, put him in the ambulance and took his blood pressure again. It was still 300 over 140. Moore was not permitted to testify that a blood pressure reading of 300 over 140 means that a heart attack or a stroke is possible.

Plaintiff Betty Pfeffer testified that her husband was hospitalized for about a week following the collision. Before the accident, Lowell had been taking "blood pressure medicine" and had just begun taking insulin. After the accident, Lowell took nitroglycerine much more often; "He would take it to bed, he never went anywhere without it after the accident." Before the accident Lowell tended the livestock--a cow, some hogs and some steers--at home, and he helped raise a big garden. At times Lowell drove a grain truck. After the accident, Lowell was unable to work as he had before; he would often "get real gray looking" and would then take nitroglycerine. After the accident, Lowell was unable to cut firewood without assistance, although he had been able to do so before the accident. After the accident, Lowell believed he was going to die; he became anxious and irritable.

On April 6, 1982, Lowell and plaintiff Betty fixed supper together, ate, and prepared to go to bed. Lowell complained of pain and took a nitroglycerine tablet. The two retired about 8:30 p.m. Some time later, Lowell woke his wife, gasping for breath. Mrs. Pfeffer tried to obtain help and tried to administer C.P.R., but "[her husband] just went, there was no noise." No autopsy was performed.

At this point it is appropriate to note that the deposition of Dr. Lorman Hoopes, had the plaintiffs been allowed to read it to the jury, would have shown that Lowell was treated at the VA Hospital from January 14, 1982, to January 28, 1982, seven days before the accident occurred. During the time Lowell was hospitalized in January it was determined that he was suffering from uncontrolled diabetes mellitus, coronary artery disease with angina, degenerative arthritis and hypertension. On January 28, 1982, Lowell was taking Isordil, Lanoxin, a form of hydrochlorothiazide and nitroglycerine, among other medicines. By resort to scientific books of everyday use, this court may take judicial notice that Isordil is a drug administered to patients suffering from coronary-artery disease to decrease the frequency and severity of their attacks of angina pectoris; Lanoxin is a drug administered to cardiac patients to regulate the mechanism of their heartbeat and so to decrease the strain on the heart itself; hydrochlorothiazide is a drug prescribed to control hypertension and nitroglycerine is commonly used to relieve the pain of angina pectoris by dilating the coronary arteries. So, from the trial court's point of view, it was obvious that Lowell was suffering from several life-threatening diseases a week before the accident occurred.

After the testimony of plaintiff Betty Pfeffer was received, the trial court made an announcement and ruling in chambers and out of the hearing of the jury. In part, the court's ruling was:

"Let the record reflect that one of the problems which the Court has before it is the causal relationship between the accident described in [the] evidence and the subsequent death of Lowell Pfeffer. This court has previously overruled a motion for a summary judgment on that issue. It did so because although the Court had the benefit of reading the deposition[s] of the two medical witnesses, ... the Court did not have the benefit of knowing what other evidence might be offered.... Now that the Court has heard all of the other testimony, the Court would be willing to review that ruling...."

Being satisfied that the testimony of Dr. Lorman Hoopes and Dr. Krishnaswamy Arnand represented all of the plaintiffs' expert testimony, the court then announced:

"Let the record reflect that the plaintiff offers into evidence the depositions of Dr. Arnand and Dr. Hoopes, and the Court finds that after reading the depositions of both doctors that there is a failure on the part of the plaintiff to sustain plaintiffs' burden of proving by a preponderance of the evidence that the death of Lowell was the direct and proximate result of the accident described in [the] evidence. For that reason the depositions of the two doctors dealing with the causation will be excluded from evidence and not read to the jury. The depositions are lengthy, to read them to the jury, after having [had] the opportunity of reviewing them myself, would [not only] be time consuming, but [would] also inject a false issue in my judgment. I do not intend to preclude you from offering in evidence any testimony of these doctors that deal with any issue in this lawsuit other than the death of Lowell."

In response to a question by defendant's counsel, the court responded:

"The record shall show I am sustaining a motion for directed verdict, after these medical depositions have been offered in evidence and read by the Court."

The trial court thus made the basis of its ruling perfectly clear. The evidence, considered as a whole, did not establish a causal connection between the injury and the death of Lowell Pfeffer. Trial counsel argued at the time that he should have been permitted to read parts of the depositions in evidence. Many trial judges would have submitted the whole of the evidence to the jury and would then have directed a verdict, but we cannot fault the trial court for conducting an efficient trial. The rule is that:

" '[a] case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of [a] substantial evidentiary basis.' "

Houghton v. Atchison, Topeka & Santa Fe Railroad Co., 446 S.W.2d 406, 409 (Mo. banc 1969), quoting Probst v. Seyer, 353 S.W.2d 798, 802, 91 A.L.R.2d 1252 (Mo.1962). ¹

Before we consider and analyze the plaintiffs' expert testimony, we call attention to the general rules set out by our Supreme...